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Eleven Years of Lethal Injection Challenges in Arkansas Julie Vandiver

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Eleven Years of Lethal Injection Challenges in Arkansas Julie Vandiver Arkansas Law Review Volume 70 | Number 2 Article 10 January 2017 Eleven Years of Lethal Injection Challenges in Arkansas Julie Vandiver Follow this and additional works at: http://scholarworks.uark.edu/alr Part of the Criminal Law Commons Recommended Citation Julie Vandiver, Eleven Years of Lethal Injection Challenges in Arkansas, 70 Ark. L. Rev. 409 (2017). Available at: http://scholarworks.uark.edu/alr/vol70/iss2/10 This Article is brought to you for free and open access by ScholarWorks@UARK. It has been accepted for inclusion in Arkansas Law Review by an authorized editor of ScholarWorks@UARK. For more information, please contact [email protected], [email protected]. Eleven Years of Lethal Injection Challenges in Arkansas Julie Vandiver∗ In 2015, the Supreme Court decided Glossip v. Gross, which upheld the denial of a challenge to the lethal injection protocol in Oklahoma.1 Justice Breyer dissented, writing that he believed the death penalty was unconstitutional because, among other reasons, it had become “unusual.”2 He pointed out that Arkansas, along with 10 other states, had not conducted an execution in more than 8 years.3 This Article provides a look into how Arkansas made it onto this list. The drought was not from a lack of effort by the state. In the ten years preceding Glossip, twenty-one execution dates were set and all were stayed.4 Nineteen of those were stayed because of lethal injection litigation. As this Article will recount, the decade-long hiatus was the result of dogged litigation on behalf of death- sentenced prisoners,5 repeated amendment of the state’s lethal injection law, and missteps by state officials. ∗ Credit for the tremendous efforts described in this article goes to the following attorneys: Josh Lee, Scott W. Braden, Julie Brain, Jeff Rosenzweig, Jennifer Molayem, John C. Williams, Joe Luby, Jennifer Merrigan, Joe Perkovich, Deborah Sallings, Meredith Boylan, and George Kostolampros. 1. Glossip v. Gross, 135 S. Ct. 2726, 2731 (2015). 2. Id. at 2772-73 (Breyer, J., dissenting). 3. Id. at 2773. 4. See Table 1. 5. See Claudia Lauer, Arkansas Court Upholds Execution Protocol, Drug Secrecy Law, ASSOCIATED PRESS (June 23, 2016), http://www.bigstory.ap.org/article/5bcb872f1a154d078bf05d7e429339cb/arkansas-court- gives-ok-execute-inmates-upholds-secrecy [https://perma.cc/6NUK-9AU8]. 410 ARKANSAS LAW REVIEW [Vol. 70:409 I. A VERY BRIEF MODERN HISTORY OF THE DEATH PENALTY IN ARKANSAS In 1970, Governor Winthrop Rockefeller commuted the sentences of all death row inmates in the state.6 In 1983, the General Assembly adopted lethal injection as its method of execution.7 The new statute called for a “continuous, intravenous injection of a lethal quantity of an ultra-short-acting barbiturate in combination with a chemical paralytic agent until the defendant’s death is pronounced according to accepted standards of medical practice.”8 The 1990 execution of John Swindler was the first execution9 in Arkansas following the Rockefeller commutations, Furman v. Georgia, and Gregg v. Georgia.10 Twenty-six executions followed.11 Arkansas, like most other death-penalty states at that time, used a three-drug lethal injection protocol.12 Sodium thiopental was administered first to render the prisoner unconscious and insensate to the effects of the second and third drugs.13 The second drug was pancuronium bromide, a muscle 6. ARK. CODE ANN. § 5-4-617(a)(1) (2016); see also Ray Long & Steve Mills, Ryan to Review Death Row Cases, CHI. TRIB. (Mar. 3, 2002), http://www.articles.chicagotribune.com/2002-03-03/news/0203030434_1_blanket- commutation-irreversible-judgment-death-row [https://perma.cc/EY3Z-GUBD]. 7. Lauren E. Murphy, Comment, Third Time’s a Charm: Whether Hobbs v. Jones Inspired a Durable Change to Arkansas’s Method of Execution Act, 66 ARK. L. REV. 813, 816 (2013). 8. 41 ARK. CODE ANN. § 1352 (Supp. 1983). 9. See Executions, ARK. DEP’T CORRECTION, http://www.adc.arkansas.gov/executions [https://perma.cc/Z5QA-LMDY]. Swindler was executed by electric chair. Prison History and Events, ARK. DEP’T CORRECTION, http://www.adc.arkansas.gov/prison-history-and-events-page-2 [https://perma.cc/Y8PZ- PJXQ]. 10. Swindler was the first execution in Arkansas since 1964. See Executions, supra note 9. The Rockefeller commutations occurred in 1970. See Long & Mills, supra note 6. Furman v. Georgia was decided in 1972. See USA: Deadly Formula: An International Perspective on the 40th Anniversary of Furman v. Georgia, AMNESTY INT’L (June 28, 2012), http://www.amnesty.org/en/documents/amr51/050/2012/en [https://perma.cc/K4GU-NGUF]/. 11. See Executions, supra note 9. 12. Deborah W. Denno, When Legislatures Delegate Death: The Troubling Paradox Behind State Uses of Electrocution and Lethal Injection and What It Says About Us, 63 OHIO ST. L.J. 63, 146 tbl. 11 (2002). 13. Id. at 97-98. 2017] LETHAL INJECTION CHALLENGES 411 relaxant.14 The drug paralyzed all voluntary movements of the body, including those necessary to breathe.15 The final drug, potassium chloride, stopped the heart.16 On November 28, 2005, Eric Randall Nance was executed by the State of Arkansas.17 On April 20, 2017, Ledell Lee became the first inmate executed in Arkansas since Eric Nance.18 Three executions followed in short order: Jack Jones, Marcel Williams, and Kenneth Williams.19 By this author’s count, between the Nance execution in 2005, and before the setting of eight execution dates in 2017, there were at least nine lawsuits filed challenging either the state’s method of execution law, its lethal injection protocol, or its control of information regarding lethal injection.20 This Article does not provide an exhaustive catalog of those suits. Instead, the following is a discussion of the key lethal injection fights between 2005 and 2016 in Arkansas. A. Terrick Nooner §1983 Action The first iteration of the lethal injection litigation was brought against the Arkansas Department of Correction (ADC) six months after the Nance execution by Terrick Nooner as a section 1983 challenge.21 The case was before Judge Susan Webber Wright, U.S. District Court judge for the Eastern 14. Id. at 98. 15. Id. 16. Id. 17. LOUISE J. PALMER, JR., ENCYCLOPEDIA OF CAPITAL PUNISHMENT IN THE UNITED STATES 35 (2008). 18. Laura Santhanam, Does the Death Penalty Bring Closure to a Victim’s Family?, PBS NEWSHOUR (Apr. 25, 2017, 3:02 PM), http://www.pbs.org/newshour/updates/death- penalty-bring-closure-victims-family/ [https://perma.cc/95PC-2UW9]. 19. This Article was prepared for a symposium in October 2016 before Governor Hutchinson took the unprecedented step of setting eight execution dates in an eleven-day period beginning April 17, 2017. Four of the eight men received stays of execution. Those stays were unrelated to lethal injection. There was a flurry of lethal injection litigation attendant to the eight execution dates which is not discussed in this article. 20. See Table 2. 21. See Complaint for Plaintiff at 2, Nooner v. Norris, No. 5:06-cv-00110-SWW (E.D. Ark. May 1, 2006) (Doc. 1). 412 ARKANSAS LAW REVIEW [Vol. 70:409 District of Arkansas.22 At the time of filing, Nooner did not have an execution date scheduled. Similar lawsuits had been brought throughout the country.23 Nooner’s complaint, which raised due process and cruelty claims under the federal constitution, drew heavily on past executions in Arkansas.24 He complained that if the first drug was not correctly administered, he would suffer when dosed with the two remaining drugs.25 The pancuronium bromide would make it impossible to breathe and death may come by suffocation.26 The potassium chloride would burn when injected.27 For proof, Nooner pointed to four executions he said were botched.28 Ronald Gene Simmons, whose execution took seventeen minutes, began coughing three minutes into his execution and turned blue.29 Fifty of the sixty-nine minutes of Rickey Ray Rector’s execution were behind closed curtains where the execution team had to cut into Rector’s arm to reach a vein.30 Five minutes after the lethal chemicals began to flow, Rector’s lips moved.31 Steven Douglas Hill had a seizure-like episode during his execution.32 Christina Riggs, who had to place her own IV catheters into her wrists, was vocalizing when she should have been unconscious.33 Two intervenors, Don Davis and Jack Jones, joined the suit.34 Davis, facing an execution date of July 5, 2006, was 22. See Nooner v. Norris, No. 5:06-cv-00110-SWW, 2008 WL 3211290, at *1 (E.D. Ark. Aug. 5, 2008). 23. See Note, A New Test for Evaluating Eighth Amendment Challenges to Lethal Injections, 120 HARV. L. REV. 1301, 1301 (2007) (describing an “explosion” of lethal injection litigation). 24. See Complaint for Plaintiff at 2, 4-7, Nooner v. Norris, No. 5:06-cv-00110-SWW (E.D. Ark. May 1, 2006) (Doc. 1). 25. Id. at 14-19. 26. Id. at 15-16. 27. Id. at 16. 28. Id. at 18. 29. See Complaint for Plaintiff at 5, Nooner v. Norris, No. 5:06-cv-00110-SWW (E.D. Ark. May 1, 2006) (Doc. 1). 30. Id. at 5. 31. Id. at 6. 32. Id. 33. Nooner v. Norris, No. 5:06-cv-00110-SWW, 2008 WL 3211290, at *12 (E.D. Ark. Aug. 5, 2008). 34. Nooner v. Norris, 594 F.3d 592, 596 (8th Cir. 2010). 2017] LETHAL INJECTION CHALLENGES 413 granted a preliminary injunction by Judge Wright.35 The court reasoned that Davis faced irreparable harm in the form of an intensely painful execution and if his allegations turned out to be baseless, the state was free to execute him at a later date “without the specter that the ADC’s protocol carries an unreasonable risk of inflicting unnecessary pain.”36 The court rejected
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